The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-03-01
justified. by the language Of Sec. q, Of the Act
of 1870 ZIG Stat as Large. 145l, from which Sec.
5514 was condensed by the revisers. Sec. q

5514 was condensed by the revisers. Sec q
reads
And be it further enacted, That whenever. by
the laws of any State Territory, the name of any
candidate to be voted for Representative
Delegate in Congress shall be required to be printed
written contained in any ticket ballot with other
election for State, Territorial municipal local Of
cers it shall be sufficient prima face evidence either
for the purpose Of indictng convcting person
charged with voting, attempting offering to vote
unlawfuly under the provisions of the preceding
TONS for committing either of the oenses thereby
created to prove that the charged indict
ed voted or attempted offered to vote such ballot
ticket committed either of the offenses led
in the preceding sections Of this act with reference to
such ballot And the proof and establishment of such
facts shall be taken, held and deemed to be presump
tive evidence that such persons voted attempted
the may be, or that such offense commit
ted with reference to the election of such Representa-
conviction unless it shall be shown that any such bal
lot when attempted offered to be cast by him.
did not contain ths of any candidate for the Of
fee of Representative Delegate in the Congress of
the United States. that such offense not
mtted with reference to the election of such Repre-
sentative or Delegate United States Bowen 100
U. s. sos.
'Tt remains to be considered whether the acts
charged in the affidavit might naturally and
reasonably, and within the meaning of the
statute, affect the election of Representative
in Congress, and it is said that they might do 80
by destroying the value of the tally papers evil
dence before the board of canvassers in any con-
test of the election of such Representative. It is
claimed that, on account of erasures and changes
apparent the tally papers in the vote for coro-
ner and criminal jud 90 it mi ght be wholly rejected
or accepted only upon evidence aliunde that the
vote for Representative in Congress, in which
there are erasures or changes. was correctly
stated, and that the person elected such
Representative might thereby lose, or be put to
great trouble and expense in proving his cleo
ton. The legal presumption as to such erasures
and changes is that they were made before the
~,x,ks1 60 nk 81
be overthrown by mere suspicion. But il there
is reason to believe that the erasures and changes
in the statements OF the vote coror and criminal
Judge were fraudulently made it is not suf
ficent reason for declining to accept the state
ments of the votes for other officers in which
there are erasures or changes tally-paper
contains a separate statement of the votes cast
for each candidate for every office. and although
it is in form, it is several in its essence and
character. The choice of majority OF
the votes in county. or district, or State, as to
other Offices, about which there is no reasonable
question doubt, ought not to be reversed
by the rejection of the whole tally papers and
the vote evidenced thereby or held in abeyance
because there is some question or doubt as to the
vote for coroner or criminal judge. lit would
be unreasonable to presume, If the election OF
Governor hinged upon the vote of any of the pre-
cincts named in the affidavit that any honest
and intelligent man or body of men would reject
its vote and give the Office to the candidate of
the minority of the voters Of the State, on ac-
would be impossible to justify such an act. 1t
was to prevent such acts of ignorance or peryer
sity that the Legislature of Indiana inserted the
following sections in the statute governing cleo
lions:
mo tallypaper poll-book or certificate returned
from any election by the board of judges thereof shall
be rejected for want of FORM for lack of being
strictly in accordance with the directions herein
tanned. if the be satisfactorily understood;
and such board of canvassers SHALL in reject
the returns from precinct if the same be certified
by the board of election of that precinct required
by law and presented to them by the inspector
| of the judges of said board.
mo commission shall be withheld by the Governor
account of any defect informally in the return
of any election to the Office Of the Secretary of State
if it cam with reasonable certainty be ascertained
from such returns what Office is intended and who is
1 entitled to sucn commission.
THE acts of the defendants had exclusive ref
erence to the election of State and county Off
| cers'-and for such acts they not and cannot
be made 'amenable to federal jurisdiction be.
! cause others might improperly or wrongfully
make them a pretext for refusing to count the
vote for Representatives in Congress.
1.-The specific facts stated in the affidavit,
| which were admitted on the argument to be all
the facts in the case do not constitute offense
| against the United States, and the commission
| er was therefore with Jurisdiction to conduct
| the examination, and Perkins was guilty of no
/ contempt in refusing to be sworn and testify as
| a witness An order or judgment of a court
| acting within its jurisdiction. Furnishing party
| or other person for contempt of its authority
| carnotbe reviewed or annulled by another court;
! but il 8 court, having no jurisdiction over the
| parties or the subject-matte before it, sentences
| party, witness other person, to imprison-
| mont for contempt of its authority, the order or
| sentence is absolutely void, and the party thus
illegally deprived of his liberty may be released
by any court having authority to issue writs of
habeas corpus. tEx. parte Fisk 49, r. S. 713
| "But even il the facts charged in the affidavit
gave the commissioner jurisdiction to proceed
| with the examination, the question as to whether
| he authorized to sentence Perkins to i'm
prisonment in the county Jail for the period OF
| three months remains to be considered. Section
627 of the Revised Statutes. which provides for
| the appointment of commissioners is follows:
Each Circuit Court may appoint in different parts
of the district for which it is held many discreet
persons it may deem necessary who shall be called
commissioners of the Circuit Courts. and shall
| else the powers which may be expressly con
ferred by law upon commissions of circuit courts
''The power to punish for con tempt is nowhere
| expressly conferred on commissioners It is
claimed, however, by counsel for the govern
ment, that the provision in Sec. 10l4, that of
tenders against the United States may be ar
rested, imprisoned or bailed by the officers there
in named, (among whom are commissioners
'agreeably to the usual mode Of process against
offenders in the State where they are found
confers these officers all the powers of
justice of the peace, sitting examining
magistrate under the laws Of Indiana, amone
which is the power to punish for contempt Art
icle 35, of the Statutes of Indiana, defining con
tenn r,ts of court and authorizing a maximum
fine OF $500 and a maximum Imprisonment Of
three months is cited as applicable to justices
of the peace in such cases. But it,
provisions for q statement BY the judge o
the acts words constituting the contempt,
for exceptions and bills of exceptions as in other
criminal actions; and direct appeals to the Su.
preme Court show that Article 80 does not apply
to justices of the peace, and do not under
stand that counsel now seriously insist that i
does. Under Section 1477 Of the statutes of In
diana justices of the peace undoubtedly have
! power to enforce the attendance of witnesses
and to preserve order in judicial proceedings be-
fore them by fine not exceeding So, and i'm
prisonment not exceeding three hours bu,
. ! furthac consideration of thar nnyxara Ia nm.